Ralf Michaels

Private international law presumes, and responds to, plurality – of laws and of values. How does it then respond to ideas about universal values? In fact, the question involves three tensions: between formalism and values, between private international law and substantive law, and between plurality and universality. Private international law cannot isolate itself from questions of value, but how should it account for them? Attempts to explicitly take on conflicts of laws as conflicts of substantive values, as for example in the better law theory, have intrinsic weaknesses. Attempts to resolve such conflicts in the name of universal conflicts values are more promising. But existing conflicts values are in conflict among themselves and there is no set of meta-values that can resolve these conflicts. Ultimately, the chapter suggests two universal values that are specific to conflict of laws: responsivity and technicality.

Ralf Michaels and Ludovic Hennebel

As non-State norms (codes, industry standards, various sources of transnational soft-law) multiply to fill the gaps left by the limited reach of national laws, the question arises as to how to give self-regulation ‘teeth’. The answer may be easier in the context of arbitration. The courts, however, are usually constrained by the Westphalian paradigm which still governs private international law: they will only recognise as legal the laws of other nation-States. It is difficult to imagine a set of criteria with which to assess the legitimacy of normative claims by various groups or communities: Western legal systems adhere to political, not legal pluralism. Thus, a corporate code of conduct does not qualify formally as law-making under a State-centred methodology. However protective it is (or claims to be) of the rights of sub-contractors and stakeholders in far-away places, its ‘private’ origin has meant (at least until recently) that such a code does not provide grounds for contractual liability before the courts, nor does it serve as a legal foundation for tort liability. The lack of ‘legal bite’ of this code explains its very success among corporate manufacturers relocating industry to foreign environments.